Wednesday, December 30, 2009

Possible Constitutional impasse in Papua New Guinea

Is there a possible weakness in the Papua New Guinea Parliamentary accountability process? The Ombudsman has been tasked with investigating (among others), the current Speaker of the House. How can the Ombudsman report to either the PM or the Speaker on his findings and not raise doubts about the investigation's result being released and acted upon? How can the PM or Speaker act on his own case? Where is the separation of powers? (excerpts from the PNG Constitution in red)

22. Enforcement of the Constitution22.The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine.

23. SANCTIONS.

(1) Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may-

(a) impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10 000.00; or(b) in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

(3) Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).

27. RESPONSIBILITIES OF OFFICE.

(1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not-

(a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or(b) to demean his office or position; or(c) to allow his public or official integrity, or his personal integrity, to be called into question; or (d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.

(2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).

(3) It is the further duty of a person to whom this Division applies-

(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and (b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.

(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.

(5) A person to whom this Division applies who-

(a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or(b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsections (1), (2) and (3),

is guilty of misconduct in office.

28. Further Provisions

(1) For the purposes of this Division, an Organic Law-

(a) may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic Law; and (b) shall make provision for the disclosure to the Ombudsman Commission or some other authority of the personal and business incomes and financial affairs of persons to whom this Division applies, and of their families and associates, and in particular of interests in contracts with governmental bodies and of directorships and similar offices held by them (including powers to nominate directors, trustees or agents, or similar officers); and (c) shall empower the Ombudsman Commission or some other authority to require a person to whom this Division applies to dispose of, or place under the control of the public trustee, any assets or income where this seems to be desirable for attaining the objects of this Division; and (d) may prescribe specific acts that constitute misconduct in office; and(e) may create offences (including offences by persons to whom this Division applies and offences by other persons); and(f) shall provide for the investigation by the Ombudsman Commission or some other authority of cases of alleged or suspected misconduct in office, and confer on the Commission or authority any powers that are necessary or convenient for that purpose; and (g) shall establish independent tribunals that-

(i) shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and(ii) are required subject to Subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position; and

(h) may make any other provision that is necessary or convenient for attaining the objects of this Division

(1A) An Organic Law may provide that where the independent tribunal referred to in Subsection (1)(g) finds that-

(a) there was no serious culpability on the part of a person found guilty of misconduct in office; and(b) public policy and the public good do not require dismissal,

it may recommend to the appropriate authority that some other penalty provided for by law be imposed.

(2) Where an independent tribunal referred to in Subsection (1)(g) makes a recommendation to the appropriate authority in accordance with that paragraph or with Subsection (1A), the appropriate authority shall act in accordance with the recommendation.

(3) For the purposes of Subsections (1)(g), (1A) and (2), "the appropriate authority"-

(a) in relation to-

(i) a person holding an office referred to in Section 26(1)(a), (b), (c) or (d) (application of Division 2); or (ii) a person holding an elective office that is declared under Section 26(3) to be an office to and in relation to which this Division applies,

means the Head of State; and

(b) in relation to a person holding any other office to which this Division applies-means the appropriate appointing authority.

(4) An Organic Law may provide for the suspension from office of a person to whom this Division applies pending the investigation of any case of alleged or suspected misconduct in office by him.

(5) Proceedings under Subsection (1)(g) are not judicial proceedings but are subject to the principles of natural justice, and-

(a) no such proceedings are a bar to any other proceedings provided for by law; and(b) no other proceedings provided for by law are a bar to proceedings under that paragraph.

29. PROSECUTION OF MISCONDUCT IN OFFICE.

(1) Where the Ombudsman Commission or other authority referred to in Section 28(1)(f) (further provisions) is satisfied that there is a prima facie case that a person has been guilty of misconduct in office, it shall refer the matter to the Public Prosecutor for prosecution before a tribunal established under Section 28(1)(g) (further provisions).

(2) If the Public Prosecutor fails to prosecute the matter within a reasonable period, the Commission may prosecute it in his stead.

3 0. OTHER AUTHORITY.

Where another authority is prescribed under Section 28 (further provisions) that authority-

(a) shall be composed of a person or persons who are declared under Section 221(1) (definitions) to be a constitutional office-holder; and(b) is not subject to direction or control by any person or authority.

3 1. DISQUALIFICATIONS ON DISMISSAL.

(1) A person who has been dismissed from office under this Division for misconduct in office is not eligible-

(a) to election to any elective public office; or (b) for appointment as Head of State or as a nominated member of the Parliament; or(c) for appointment to a provincial legislature or provincial executive (including the office of head of a provincial executive), or to a local-level government body, for a period of three years after the date of his dismissal.

(2) In the event of doubt as to whether an office or position is an office or position to which Subsection (1) (a), (b) or (c) applies, the decision of the Ombudsman Commission is final.

Under the principle of 'Separation of Powers', the Chief Justice can only hear cases that are put to his Office, not determine what those cases are. The Ombudsman could establish an 'independent tribunal' (28. g.i., ii. above), be set up under these exceptional circumstances, to resolve the apparent impasse and to provide a process that is clearly transparent to the people of PNG. For example: Why not have the Ombudsman hand his report about the PM, Deputy PM and the Speaker to a bipartisan Parliamentary Committee, possibly chaired by the Governor General? That would provide probity and maintain transparency and conform to Sec 29. (b) above. The Parliamentary Committee could then refer any matter arising from the Ombudsman's report to the National Court, thus maintaining a separation of powers in these exceptional circumstances. If the Public Prosecutor refuses to act, the Commission may act in his stead. (29. (2.) above). Is there a Constitutional lawyer available who might be able to throw some light on this situation?

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